Ask the Expert: Capital Punishment in the Torah

How should we respond to adultery?

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Question: The Torah has many laws that include death if they are violated, such as adultery. If a modern rabbi is told a person in his congregation has committed such a sin, how is it addressed?
--Steven, Camarillo

the expertAnswer:
I'm going to divide your question into two sections, Steven, so that I can make sure to give you a comprehensive answer. The first part of your question (as far as I can tell) asks about the contemporary response to an action that is prohibited, on pain of death, in the Torah. The second part asks how a rabbi should respond if he or she is told a person in their congregation is committing adultery.

To help me answer the first part of your question, I spoke with Rabbi Benjamin Blech, a professor of Talmud at Yeshiva University. Rabbi Blech explained, "Although there are a number of crimes for which the Torah decrees a death penalty in actual fact Judaism never favored capital punishment." The rabbis who wrote the Talmud made it so that it was nearly impossible for any crime to meet the standards needed to impose the death penalty. (Two witnesses have to testify that they witnessed the crime and that they warned the transgressor beforehand that if he carried out the act he would be executed. Then the transgressor had to accept the warning, stating his willingness to commit the act despite his awareness of its consequences). The Mishnah famously states that a Jewish court that put one man to death every seven years is considered bloodthirsty, and a dissenting view recorded in the text says even once every 70 years is too much (Makkot 1:10).

Rabbi Blech explained to me that the Torah indicates that some crimes are worthy of death in order to emphasize their importance. But, Blech said, “God loves even sinners so much that He sees to it this harsh judgment doesn’t really get to be carried out.”

Hopefully that helps you understand why we have some strong retributive sentiments in the Torah, and what they have meant historically. As for what a rabbi today should do when confronted with an admission of adultery from a congregant, I got in touch with Dr. Michelle Friedman, a psychiatrist and the chair of the of the Department of Pastoral Counseling at Yeshivat Chovevei Torah, a Modern Orthodox rabbinical school. Dr. Friedman said, "If a modern rabbi were to hear a confession of adultery from a married person him/her self, that rabbi should direct attention to the state of the marriage and to understanding why the infidelity occurred. People who confess generally are looking for guidance and support and this is where a rabbi can be most helpful."

What if a rabbi hears from someone else that one of his or her congregants is having an affair? Rabbi Eric Yoffie, President of the Union for Reform Judaism wrote to me that, "Rabbis are not the sex police, and stories told by one congregant about another are notoriously unreliable.  (They generally fall into the category of r’chilut – forbidden tale-bearing.)  A rabbi should certainly teach about such matters, but should be directly involved only if he/she is approached for guidance or if a situation exists that creates a public scandal or otherwise brings dishonor on the congregation."

But when push comes to shove, if a congregant confesses an infidelity to his or her rabbi, what should the rabbi do? Rabbi Danny Nevins, the dean of the Jewish Theological Seminary suggests, "I'd recommend that they make a firm internal commitment not to repeat the betrayal, and then to go to their spouse and confess what happened, express their remorse and resolve not to repeat it, and plead for the chance to earn their forgiveness over time." In other words, start by doing teshuva, or repentance--a smart response to any wrong-doing.

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